Banspati vs State

Shivdayal, J.—The Appellant has been convicted u/s 376 of the Penal Code and sentenced to one year rigorous imprisonment and a fine of Rs. 100/-. The case for the prosecution was that on September 21, 1921, when Sm. Lalli after taking, bath in the river was passing by the field of one Kedar, the Appellant caught hold of her, took her in the field, threw her on the ground and forcibly committed Tape on her. After he spend, himself, he allowed the girl to go. She started for her home crying. On the way she related the matter to Mst. Chhoti (P.W. 3) whom she met first and on reaching home, to her mother Mst. Mugia (P.W. 1). She was medically examined but the doctor found no marks of injury on her private parts, although three abrasions were noticed on her back.

The first and foremost question in this appeal is whether the Appellant actually committed rape on Lalli. Ordinarily, corroboration of the woman raped must be looked for but that is not an absolute rule an if the Court is completely satisfied with her evidence, it is open to it to convict the accused even on her uncorroborated testimony. (See observations in Sidheswar Ganguly Vs. The State of West Bengal, . In the present case, so far, as the allegation of rape is concerned, there is the solitary evidence of the prosecutrix. On carefully going through her evidence and the vivid description of how the accused had carnal knowledge of her, it does not appear that this was her first experience of sex life. Dr. Kamran (P.W. 5) also stated in his report that her hymen was found torn in small tags. He stated in Court that in his opinion the girl was accustomed to sex life. There were no blood or seminal stains on any part of her body. In her statement she says that the boy had placed her body on his legs and was keeping one of his hands on her back so that she might not be drowned in the pond. She also says that when she wanted to raise an alarm, the accused put his hand on her mouth. The boy himself is a lad of 20 years and the girl is said to be of about 14. It is difficult to believe that single handed, a boy of this age would be able to forcibly rape a girl of 14, all the more so when she comes from the labour class. (See observations in Modi's Medical Jurisprudence, 13th edition, at p. 325). In the absence of any marks of violence on her private parts and having regard to the circumstances stated above, it is not possible to believe the prosecution story as given out by the prosecutrix.

Ail that is staled by Mst. Chooti (P.W 3), to whom the girl reported the matter first, was " ". The expression" " could either mean that he prepared himself to ravish her or attempted to ravish her or actually lavished her. It appears that in cross-examination this was sought to be clarified when she stated" " (The girl had not described to the witness what precisely the accused did it her). Being on bail, the accused appeared before me. Shri Rajendrasingh identified him. To me the boy did not appear, to be even 20 years of age. He is just a lad, -short-statured(sic) and thin From his appearance. I would estimate him to be between 16 and 18. The physical appearance of the boy fortifies my conclusion that the prosecution story of a forcible rape is not believable.

Before I leave this cafe, I must observe that in every case of rape or kidnapping, for the matter of that, the age of the prosecutrix must be positively established. Thorough medical examination should be resorted to for that purpose and all other evidence which may be available must be brought before the Court. In this case there is no evidence of X ray examination in spite of the suggestion in the doctor's certificate. If I had come to the conclusion that the accused actually had intercourse with the girl, then having regard to the attending circumstances it would have been also possible to hold that it was a case of her consent and the question of her age would have assumed great importance. The girl says she is 9 years old. Her mother says that she was married "10 years age" when she was five or six years old. This brings her age to somewhere between 15 and 16 years. On medical examination, she was found to have 28 teeth, which means that she was above the age of, 12 to 14 years. (See Modi(sic) at page 29), But a girl of 16, 17 or 18 also has 28 teeth, so that the presence of 28 teeth does not fix her outside age. In the certificate the doctor clearly stated that for correct determination of age, she might be referred to for X ray examination. The prosecution has produced no evidence to show that she was examined for the ossification tests or was taken for X-ray examinational all. This callousness of the prosecution is inexcusable. The investigating officer, when examined in the trial Court, found it convenient not to say one word to explain this serious omission on his part. The benefit of doubt in such cases must go to the accused.

In the result this appeal is allowed. The conviction and sentence of the Appellant are set aside and be is acquitted. He is on bail. The bail bonds are discharged.